How Much Time Will Martha Stewart Do?:
How Her Sentence Will Be Calculated, And How Long It May Be

Now that Martha Stewart has been convicted by the jury on all counts, what sentence will she be likely to face?

Stewart's destination, at least, is clear: A minimum security federal prison camp for women -- most likely the one in Danbury, Connecticut (inmate population 235) where hotel magnate Leona Helmsley served time. But her sentence has yet to be determined.

Nonetheless, some initial comments may be offered. It's plain that Stewart has already made some mistakes that will lead to her serving a longer sentence than she had to for her offenses. And if she is not careful, she may make additional mistakes that have the same effect.

Statistically, that possibility is slim. According to a 2001 Special Report by the Bureau of Criminal Justice Statistics on Federal Criminal Appeals, defendants convicted at trial lost their appeals 73.7% of the time. Stewart thus has only approximately a one in four chance of success.

Moreover, even if Stewart won her appeal, all she might get would be a new trial -- at which she might be convicted again. According to 2001 data from the U.S. Sentencing Commission, out of 4,275 criminal appeals that year for which the Commission had adequate information, only a very modest 294 (or 6.9%) resulted in total remands for further proceedings. And only a measly 21 (or 0.5%) resulted in outright reversals of the convictions.

In sum, Stewart's statistical likelihood of success on appeal is very slight. However, her individual chances may be increased somewhat by the fact that she has retained excellent lawyers who are likely to submit strong briefs on her behalf.

Suppose Stewart does not prevail on appeal, however. What will be her fate? As I noted above, it will be made worse by mistakes she's already made -- and made even more unpleasant by those she may make in the future.

Stewart's first misstep was not to plead guilty in exchange for a shorter sentence. Shortly after she was indicted in June 2003, I wrote a column for FindLaw explaining why, upon reviewing federal statistics, my view was that "if Martha Stewart's case follows the overwhelming trend in recent federal fraud cases, she is almost certain to either plead guilty or be found guilty after a trial."

Acquittal, in other words, was pretty much out of the question. Federal charges are not generally brought lightly; the evidence against Stewart was strong.

Stewart's lawyers may well have shared my view that her chances of an acquittal were slight. Some media reports indicate that they may have urged her to accept a guilty plea. If these reports are accurate, she was doubly foolish in both declining to plead guilty of her own volition, and ignoring her attorneys' wise advice to this effect.

Had Stewart pleaded guilty, the government would doubtless have recommended a lower sentence for her than it will now. In addition, the Federal Sentencing Guidelines themselves would have counseled a significantly lower sentence for her.

Under the Guidelines, defendants who plead guilty to an offense generally get less time for "acceptance of responsibility." In some cases, in addition, these defendants may be eligible for confinement in halfway houses, rather than prisons, or just receive straight probation.

Indeed, had Stewart pleaded guilty last year to obstructing justice and accepted responsibility in a timely manner, her sentencing range could have been as low as 6 to 12 months. At that range, she could have avoided prison completely because the judge would have been able to sentence her to just six months of home detention.

Now, as I will explain below, her range may well be calculated to be as long as 37 to 46 months (a calculation that takes into account recent and more onerous changes to the Guidelines as well as several sentencing enhancements). In short, her trial gamble may end up costing her close to four years of freedom.

Strikingly, Stewart still isn't accepting responsibility for what she did. Indeed, her response has been just the contrary.

Immediately after the guilty verdicts came down, Stewart posted the following statement on her website www.marthatalks.com: "I am obviously distressed by the jury's verdict but I continue to take comfort in knowing that I have done nothing wrong and that I have the enduring support of my family and friends." (Emphasis added.)

Clearly, denying wrongdoing is tantamount to denying responsibility. Within an hour, the underlined phrase was deleted from her website--likely on the advice of counsel--in order to salvage her sentencing position.

Technically, even if Stewart were to belatedly accept responsibility for her crimes, it would still be too late. According to the Guidelines, the downward adjustment for acceptance of responsibility "is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse."

Nevertheless, there's no way acceptance of responsibility could hurt Stewart at sentencing -- and it might help her. A sincere expression of guilt and remorse might convince the judge, who still has some sentencing discretion even under the Guidelines, to choose a sentence at the lower end of the permissible range.

And conversely, if Stewart continues to vocally claim that she's innocent, it seems unlikely that the judge would pick a sentence at the lower end of the range. An unrepentant Stewart would stand out as the kind of defendant who should receive a sentence at the upper end of the sentencing range.

As I mentioned in my June column, conduct can still be used at sentencing even if it based on charges that were never brought, that were dismissed, or that resulted in an acquittal.

In the Stewart case, one charge that was never brought stood out to legal observers as a dog that didn't bark. Stewart's was, in essence, an insider trading case. While Stewart is facing an SEC civil action for insider trading, no corresponding criminal charge was brought.

In addition, a charge that was dismissed also stood out: Judge Cedarbaum dismissed another type of securities fraud claim that was brought -- a charge based upon allegations that Stewart's lies boosted or at least bolstered her own company's stock in the wake of the investigation.

Now both of these issues can be resurrected at sentencing. Evidence suggesting Stewart committed these two offenses -- one uncharged, the other dismissed -- may be offered by the government. And under the law, the judge can take this evidence into account in sentencing as "relevant conduct."

Stewart was convicted of obstructing justice and lying to authorities. Accordingly, the obstruction of justice sentencing guidelines will apply. In light of recent amendments to the Guidelines, Stewart's initial sentencing range will be 15 to 21 months. But that is far from the end of the matter.

Suppose the government proves by a preponderance of the evidence that Stewart's conduct, in impeding a government investigation, resulted "in substantial interference with the administration of justice." (A "preponderance of the evidence" is a relaxed "more likely than not" standard that is very different from "beyond a reasonable doubt." And under the law, that is the standard applicable here.) If so, then Stewart's sentencing range could increase to 24 to 30 months.

Stewart was also convicted of a conspiracy to obstruct justice that included her broker, Peter Bacanovic, who also was convicted. Accordingly, Stewart may be eligible for a sentencing enhancement for being "an organizer, leader, manager, or supervisor" in the criminal activity. If so, that enhancement would increase Stewart's sentencing range to 30 to 37 months.

Finally, suppose the government uses the evidence supporting the dismissed securities fraud claim to show "abuse of [Stewart's] position of trust" as a member of the board of directors for Martha Stewart Living Omnimedia. If so, this enhancement would increase Stewart's sentencing range to 37 to 46 months.

Stewart's only hope now for a less severe sentence would be to obtain a downward departure -- that is, to hope the judge will choose to go below the applicable sentencing range. But that hope, again, is slim.

One of the avenues that I explored in my June 2003 column was to argue for a departure based on the fact that Stewart's conduct was aberrant behavior in an otherwise straight-arrow life. But as even Robert G. Morvillo, Stewart's attorney, recognized in a New York Law Journal article published last month, "[a]berrant behavior, already a difficult ground for departure for defendants to obtain[, is] now even more so under the Feeney Amendment." As I have written in another prior column, the Feeney Amendment greatly restricts federal judges in departing from the Guidelines.

In any event, as Morvillo himself points out, recent amendments to the Guidelines added "commentary that states that fraud schemes 'generally' would not meet the requirement that [such aberrant] conduct not be 'repetitious or significant planned behavior.'"

In light of this commentary, an "aberrant behavior" downward departure for Stewart would seem to be ruled out. Given that Stewart was convicted of conspiracy, her behavior was plainly "planned." And given that she was convicted of lying repeatedly, on different occasions (though about the same topic), her behavior probably also counts as "repetitious."

Stewart could still, as I also suggested in my earlier column, argue for a departure based on her susceptibility to abuse in prison, or her claim of selective prosecution. She and her supporters have repeatedly claimed she was targeted based on her celebrity, and doubtless, they will be able to point to some evidence to that effect.

Nevertheless, both of these arguments -- susceptibility to abuse in prison, and selective prosecution -- are long shots. And even if she were to succeed, such departures would not help her to avoid prison time. She only would just get a little less prison time, not none at all.

One stroke of luck for Stewart, however, is that she happens to be before a district court within a fairly liberal Circuit. The district courts within the jurisdiction of the U.S. Court of Appeals for the Second Circuit -- which include the U.S. District Court for the Southern District of New York, where Stewart was tried and convicted, and where she will be sentenced -- have a somewhat higher downward departure rate (18.4%) than the national average (11.0%).

In the end, the chances of any downward departure for Stewart at this point are exceedingly slim, no matter how creative the argument. Nevertheless, creative arguments by her counsel may help -- at least to ensure that Stewart is sentenced at, or near, the bottom of the sentencing range.

And if the range is indeed 37 to 46 months, that could make a significant difference. With a 37-month sentence, and time off for good behavior, Stewart could be out in as little as 32 months. Anyway you look at it, however, she is going to federal prison.